M. S. Atunrase & Ors V. Alhaji Abdul Mojid Sunmola & Anor (1985)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C 

In a consolidated suit before the High Court of Lagos, at Ikeja, the plaintiffs instituted an action against the defendants for a declaration of title, damages for trespass, injunction and recovery of possession in respect of a parcel of land at Mende Village, Onigbongo, in the Ikeja District of Lagos State.

The plaintiffs’ case, as pleaded in their Amended Statement of Claim, was that the land in dispute was a portion of a larger parcel of land which originally belonged to one Oyero of Onigbongbo Village. It was their case that the said Oyero had three children namely -Aina Adu, Taiwo Jabita and Kehinde Ebo; that the said children of Oyero inherited the whole of his landed property after his death in accordance with Yoruba customary law; that in 1946 there was a partition of Oyero’s land among his three children and that the land at Mende Village, which is the land in dispute was the portion alloted to Taiwo Jabita while other children were allotted other portions of Oyero’s land; that after the partition, various allottees were put in possession of their respective portions; that about 1954, Bello Taiwo Jabita (alias Kosegbe), the only son of Jabita, sold the land allotted to Taiwo Jabita at Mende Village to the plaintiffs; that the portion sold to the plaintiffs was conveyed to them by virtue of a Deed of Conveyance dated 4th September, 1954 and registered as No. 49 at page 49 in Volume K1 (Colony) of the Register of Deeds at the office in Lagos, that after the sale to the plaintiffs, they were put in possession by their vendor; and that the plaintiffs thereafter put a caretaker on the land and exercised other acts of ownership on it without disturbance until about 1970 when the defendants trespassed on the land, and in spite of the plaintiffs’ protest, have continued their acts of trespass ever since.

In their Amended Statement of Defence, the defendants denied ever trespassing on the plaintiffs’ land. It was their case that they leased or bought the land in dispute from the Oyero family who jointly owned the land and who put them in possession; that the Oyero family land was never partitioned as claimed by the plaintiffs; that at one time when there was news that one Bello Isiba, without family consent, was dealing with family land, notices were put on the land warning prospective purchasers not to transact business with the said Bello Isiba; that later an action was instituted against the said Bello Isiba and the Folarin in suit No. AB/3/55 in respect of a portion of family land and judgement was obtained against them.

At the trial all the parties gave evidence and called witnesses in support of their respective claims. At the conclusion of the hearing, the learned trial judge, Cole, J. carefully considered all the various issues raised in the case, and in a reserved judgement, dismissed the plaintiffs’ claim for declaration of title but awarded them damages for trespass and granted injunction restraining the defendants from Committing further acts of trespass on the land in dispute. Both parties were dissatisfied with the decision of the trial court and so appealed to the Court of Appeal where their appeals were dismissed. Still dissatisfied, both have appealed to this Court.

On behalf of the defendants (hereinafter called “the appellants” in the main appeal and “the respondents” in the cross-appeal) several groundsof appeal were filed. In his brief of argument, however, Mr. Akinrele, learned Senior Advocate for the appellants, raised six issues for the consideration of the court in this appeal. He put them in his brief as follows:

(1) “Could the respondents succeed in an action for trespass and injunction without showing a valid title, the appellants having been in possession, by their pleadings at the time of summons

(2) Is there any acquiescence on the part of the appellants’ predecessors in title

(3) Could the Limitation Decree or Law have been applied to this case in the Court of Appeal and if so does it assist the respondents

(4) Does the mention of the names of members of the three branches of the Oyero family indicate that the title of the appellants is not derived from the Oyero family

(5) Is it necessary to declare a void title void

(6) And finally, ought the appeal of the appellants to have been allowed at the Court of Appeal”

There are, in my view, only two major issues in this appeal which I think need be considered, and they are:

(i) Whether the respondents could maintain an action for trespass without showing a valid title,

(ii) Whether there was any acquiescence on the part of the appellants’ predecessor in title.

With regard to the first issue, Mr. Akinrele’s submission was that since it was admitted in the pleadings that the appellants were in possession at the time of the commencement of the action, and the respondents were unable to show a better title, the respondents’ action for trespass and injunction should have been dismissed in accordance with the decision of the Supreme Court in the case of M. O. Obisanya v. Nwoko (1974) 6 SC. 69, a case he claimed is on all fours with the instant case. He referred us to a passage in the judgement which reads as follows:

“The plaintiff agreed that he was not in possession when this case commenced. His case is that the defendant wrested possession from him and that as such he was a trespasser and could not, by the act of ouster, claim to be in rightful possession of the land, but he has the onus of establishing that the defendant is a trespasser and he cannot do so by settling against the title of the defendants a title which, in itself, was defective.”

In his reply, Mr. Davis for the respondents submitted that both the High Court and the Court of Appeal were right to have applied the principles of law enunciated in the case of Pius Amakor v. Benedict Obiefuna (1843) 12 L.J.Q.B. 348 or 114 E.R. 1201 at 1203. It was also his submission that Obisanya’s case (supra) is different from this case because in Obisanya’s case the defendant had relied on document (exh. N) which the Supreme Court regarded as deffective as an agreement to sell and buy land under Native Law and Custom. But in this case, he said, both parties relied on documents which were drawn up in English forms purporting to pass title to the purchaser or purported lease and which documents were found defective by the courts below.

I think at this juncture, it is desirable to have a look at the judgement of the learned trial judge in order to see how he arrived at the conclusion that, even though with invalid title, the respondents could, in the circumstances, maintain an action for trespass and injunction against the appellants. In his judgement, the learned trial judge dealt with the matter as follows:

“As regards the claim for trespass, I am satisfied on the evidence before me, and I find as a fact “that the plaintiffs bought land in dispute in 1954, and were put into possession. I also find as a fact that they were in possession at the time of the alleged trespass by 1st defendants in 1969. The 1st defendant admitted he built his house on the land about 6 years ago. The 1st defendant must justify his entry by establishing that he had a better title to the land than the persons in possession……

If the title of the plaintiffs in this case by virtue of conveyance exhibit A was defective, then as against the 1st defendant who had no title at all in 1969, when he entered upon the land, the plaintiffs were entitled to maintain a suit in trespass against the 1st defendant…”

With regard to the 2nd defendant, the learned trial judge was also of the view that since he had found as a fact that the respondents had been in possession of the land in dispute before the 2nd defendant got there in 1961 on the strength of his invalid lease, the respondents could properly maintain an action for trespass against him. It is to be noted that when this same issue was raised in the Court of Appeal, that court had no hesitation in agreeing with the conclusions of the trial court.

It is settled law, and this Court has so held times without number, that trespass is actionable at the suit of the person in possession of the land (Amakor v. Obiefuna, (supra) Adeshoye v. Shiwoniku 14 WACA 86.; Emegwara and Ors. v. Nwaino and Ors. 14 WACA 331; Tongi v. Kalil 14 WACA 347). The slightest possession in the plaintiff enables him to maintain an action for trespass if the defendant cannot show a better title.

In Alhaji Fasasi Adeshoye v. J. O. Shiwoniku (supra) the following statement of the law appears:

“The appellant sought to defeat the respondent’s claim by setting up the conveyance dated 14th January, 1950, under which he claimed to be the owner in fee simple of the land in dispute. The “validity of that conveyance was put in issue by the respondent, and, in my opinion, the learned trial judge was bound to determine the issue so raised. Once it became clear that the grantors had purported as they did to convey a title which they did not possess, the respondent being in possession of the land could successfully maintain an action for trespass against the appellant.”

Any form of possession is sufficient to maintain an action for trespass against a wrongdoer as long as it is clear and exclusive. It is not necessary, in order to maintain trespass, that the plaintiff’s possession should be lawful and actual possession is good against all except those who can show a better right to possession in themselves (see Halsbury’s Laws of England, 3rd Edition, Vol. 38, at page 743, paragraph 1213).

In this case the evidence shows that the respondents had been in prior possession of the land in dispute before the appellants got there, and that the appellants could not show a better title. In the circumstances, I am of the View that both of the trial court and the Court of Appeal were right in their conclusion that the respondents could successfully maintain an action for trespass against the appellants.

On the issue of acquiescence, Mr. Akinrele, SAN, submitted that the learned trial judge was in error to have found that the appellants’ predecessor-in-title acquiesced in the adverse possession of the respondents. He referred to certain activities of the Oyero family on the land, or relating to the land, which activities he submitted were inconsistent with the conclusion of the learned trial judge.

The record shows that on the issue of acquiescence, the learned trial judge made some findings of fact on which he based his conclusion. These are:

(1) That Bello Jabita sold the land in dispute to the plaintiffs in 1954 and put them in possession;

(2) That in 1955, the Oyero family instituted an action against Bello Jabita and one Nathaneil Folarin in respect of a parcel of family land sold to Folarin by Bello Jabita without the knowledge and approval of the Oyero family;

(3) That in that action AB/3/55 (Exh. H) the Oyero family obtained judgment for possession against Folarin in respect of the land sold to him and consequently the conveyance executed in his favour was set aside by the court;

(4) That in suit AB/3/55 the Oyero family did not join the respondents, even though the Deed of Conveyance executed in favour of the respondents by Bello Jabita was registered in 1954;

(5) That the respondents remained in undisturbed possession of the land sold to them by Bello Jabita from 1954 to 1969 or 1970 when the appellants committed the trespass which resulted in this action.

It was upon the above findings of fact that the learned trial judge concluded as follows:

“There can be no question that the possession of the plaintiffs from 1954 to 1969 or 1970, was adverse to the rights of the Oyero family and for nearly 15 years they did nothing to assert their rights to possession but instead started selling and leasing land in possession of the plaintiffs to strangers. I hold the view that the Oyero family acquiesced in the long possession of the plaintiffs on the land in dispute-see Alhaji Suleman v. Hannibal Johnson (151, 1951) 3 WACA P.213.

Acquiescence, in its proper legal sense, implies that a person abstains from interfering when a violation of his rights is in progress. As stated earlier, Mr. Akinrele submitted that the Oyero family took certain steps in connection with the land in dispute which actions, he submitted, could have drawn the attention of the respondents to the fact that their title and possession were being challenged. I am unable to accept this submission. Throughout the record, there is not a scrap of evidence to suggest that the Oyero family took any step to assert their right to possession. I am therefore satisfied that the conclusion to which the learned trial judge came, with regard to the issue of acquiescence, was amply supported by the evidence before the court, and that the Court of Appeal was right in upholding the decision of the trial court.

In conclusion, the appeal of the appellants against the decisions of the two lower court fails and it is hereby dismissed.

With regard to the cross-appeal, the only ground argued by Mr Davison behalf of the appellants, reads as follows:

“Having agreed with the trial judge at page 249 lines 22-35 of the Records that the Oyero family had acquiesced in the adverse possession of the Plaintiffs/Appellants and that by virtue of section 20 of the Limitation Decree of 1966 (now re-enacted in section 21 of the Limitations Laws, Cap.70 of the Laws of Lagos State, and that such adverse possession coupled with the Law on Limitation of Actions had not only barred the rights of the Oyero family to recover possession of the parcels in dispute, but had extinguished all right, title and/or interest which they had therein, the Court of Appeal (similarly the trial judge), should have proceeded to declare the Plaintiffs/Appellants the owners of the said parcels of land.”

Arguing his cross-appeal, Mr. Davis submitted that since the appellants’ long and exclusive possession coupled with the provisions of section 21 of the Limitation Law has extinguished the rights of the original owners of the land, the appellants, who are in possession are entitled to be declared absolute owners of the land. In support of his submission he relied on Megarry and Wade-The Law of Real Property, 4th ed. p. 1007. In chapter 16 of the book, the learned authors dealt with the subject of Adverse Possession, and spelt out the distinction, under English law, between prescription, which is common law doctrine, and Limitation, which is wholly statutory and is concerned with title to land. With regard to prescription, it is my view that the English rule of prescription cannot help the appellants as there is in Nigeria no corresponding law to the English rule of prescription (see Mora v. Nwalusi (1962) ALL N.L.R. 681 at p. 684). As regards the Limitation Law, it is my view that it cannot be pleaded against the Oyero family who are not parties to these proceedings and who have not, in fact, instituted any action to recover possession from the appellants.

In this case, it is common ground that the Oyero families are the true owners of the land in dispute, and that the appellants, who are trespassers, are still in possession because the respondents cannot show a better title. The question is: Can the appellants be declared owners of the land simply because they have been in continuous and undisturbed possession of it for some considerable length of time In my judgement, the answer to this question must be in the negative.

In R.O. Ayodele v. DR O. Oluwole (1969) 1 ALL N.L.R. 233 AT P. 240, Fatayi-Williams, Ag. J.S.C. (as he then was) delivering the judgement of the court, said:

“There is one other point, learned counsel for the respondent argued before us very strongly that because the respondent and his predecessors in title had been in continuous possession of the disputed land, the respondent, if only for that reason, should have been declared the owner. On this point, we would do no more than to refer counsel to the following observation of this Court in Da Costa v. Ikomi SC. 736/1966 delivered on 20th December, 1968. It is as follows:

“Notwithstanding this, counsel submitted that it was sufficient for the plaintiff to establish her claim if she showed long and undisturbed possession acquiesced in by the Oloto family, but to our mind, this submission quite overlooks that here the plaintiff was not seeking to rely on undisturbed possession to resist a claim by the Oloto family but it was, in counsel’s submission, relying on long possession to establish a claim:

“for declaration of title. Not only is long possession and acquiescence really a weapon more of defence than of offence, but it must also be specifically pleaded and this was not done here. In our view the plaintiffs claim stood or fell on establishing a good title derived from the Oloto family and this she failed to prove while to the contrary the defendant had established that he had a good title from the Oloto family. The plaintiff’s long possession was, therefore, only that of a trespasser or a squatter and would not enable her to succeed against the true owner who was in fact proved to be the defendant.”

Also in Olayioye v. Oladeinde O. Oso (1969) 1 ALL N.L.R. 281 at p.285, the Supreme Court said:

“The learned trial judge dealt at length in his judgement with the issue of the long possession of the plaintiffs but, with respect to him, he was in error in employing the plea of long possession as a sword instead of as a shield. A party in long possession is entitled to resist the claims of a rightful owner by pleading his long possession but understandably he cannot make that a basis of a claim in an action instituted at his own instance for a declaration of title as against a true owner.”

In Agboola v. Abimbola (1969) 1 ALL N.L.R. 287, the respondent, who had been in adverse possession, applied to the Registrar of Titles for registration under the Registration of Titles Act. The appellant who claimed a direct grant from the original owners of the land, lodged an objection against the respondent’s application. He (the appellant) subsequently also applied to be registered and the respondent lodged an objection against the application. The appellant’s objection and application were dismissed by the Registrar. The appellant appealed to the High Court but his appeal was dismissed. On further appeal to the Supreme Court, the Court said that, by applying for registration of her title the respondent was using long possession as a basis for title rather than as a defence. The Court said:

“The Registrar then held that on the principles of law expressed in cases like Akpan Awo v. Cookey-Gam, 2 N.L.R.100 and Saidi v. Akinwunmi, 1 F.S.C. 107 , equity would refuse to assist a real owner of land who had failed to assert his rights timorously. The principles enshrined in the cases cited, together with a long list of others, exemplify some of the most sacrosanct of legal principles and they are well known and universally accepted. We too are in agreement with these principles and do not propose to shift one inch away from their authority. But none of the cases has ever been applied in favour of a plaintiff claiming title thereby as opposed to being applied in favour of a defendant resisting the claims of the proper owner. ”

As the above decisions clearly show, long and adverse possession of land cannot found claim in title against the true owner. In the circumstances, the declaration being sought to be made must be refused, and it is hereby refused. In the result the cross-appeal fails and it is hereby dismissed. Since the main appeal has also been dismissed, each party should bear his own costs.M. BELLO, J.S.C.: I had a preview of the lead judgement of my learned brother, Kawu, J.S.C. For the reasons stated by him I agree that both the appeal and the cross-appeal should be dismissed and the decision of the Court of Appeal be affirmed. There shall be no orders as to costs.

It is trite law that sale or lease of family land by a member of the family, who is not the head of the family, without the consent of the head of the family is void: Ekpendu v. Erika 4 F.S.C. 79, Oyebanji v. Okunola (1968) N.M.L.R. 221, Akerele v. Atunrase (1968) 1 ALL N.L.R. 201 and Lukan v. Ogunsusi (1972) 1 ALL N.L.R. (Part 2) 41. In the case on appeal all the parties claimed to have acquired their respective titles over the land dispute, which forms part of the Oyero family land, from some members of the Oyero family. The learned trial judge found the alienation of the land in dispute to the parties was done without the consent of the head of the Oyero family. He accordingly held the respective titles of the parties void and dismissed the Plaintiffs/ Respondents’ claim for declaration of title. He, however, found that the plaintiffs/respondents had been on the land for over 15 years without let or hinderance, when the Defendants/Appellants disturbed their possession. For that reason, he granted the Plaintiffs/Respondents claim for damages, for trespass and injunction. The Court of Appeal affirmed the decision of the trial court. For the reasons so ably stated in the judgement of Kawu, J.S.C., the decision of the Court of Appeal is impeccable.

Finally, the submission of Mr. Davis in the cross-appeal that the Plaintiffs/Respondents are entitled to declaration of title on the ground that by their long adverse possession of the land in dispute they have acquired prescriptive title may be summarily disposed of. It has long been established since Adu v. Kuma (1937) 3 W.A.C.A. 240 that prescriptive title is unknown under customary law. Adverse possession, however long, does not confer title on the possessor against the true owner.

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SC.37/1984